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Historically racism has pervaded the administration of justice in America and Canada. Racial biases against blacks are still apparent today through the many different arenas of the criminal justice system. Black Americans argue that they are treated unequally and more brutally than whites at all levels in the criminal justice system. As a result of this unequal treatment blacks are more likely to be arrested, charged, convicted and receive longer sentences then whites for the same crimes. Black Americans make up about 12% of the US population and they account for more then 30% of all arrests, 44% of all prisoners and 40% of prisoners on death row (Hunt, 1999:74).
The racial problem exists in many forms within the criminal justice system and most of this racial disparity can be attributed to the practices of the prosecution and more particularly the police. The unequal treatment of blacks within the justice system becomes evident through various forms of police misconduct such as excessive use of force against blacks, harassment, planting and falsifying evidence and police perjury. Most of these issues were brought to question in the criminal court case against O. J. Simpson, who was arrested and charged with the murders of his ex-wife Nicole Brown Simpson and Ronald L. Goldman.
The question of race was addressed in the high profile court case of O.J. Simpson when Simpson's lawyer, Johnnie Cochran took a Critical Race Theory position in defence of his client (Aylward, 1999:68). Cochran believed that racism was a central issue to the case and it was revealed primarily by detective Mark Fuhrman of the LAPD in a white supremacist form. Fuhrman was the detective who uncovered most of the evidence that connected Simpson to the murders. The defence's argument was that detective Fuhrman, motivated by his hatred of blacks, had planted the blood on O.J.'s bronco and the bloody glove at the Simpson's residence in order to incriminate him for the crime.
In order to prove Fuhrman's racial hatred and willingness to fabricate evidence, Cochran wanted to introduce evidence of thirty incidents where detective Fuhrman used racial epithets ("nigger") and eighteen examples of his misconduct contained in audio tapes that Fuhrman had made (Aylward, 1999:69). The court did not allow this evidence to be admitted but did allow for the defence to put three witnesses on the stand to testify to the racist attitudes they had experienced from detective Fuhrman.
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The jury in the criminal trail of O. J. Simpson consisted of nine black female jurors, two white jurors and one Latino juror, who unanimously acquitted Simpson of all charges of murder. Many whites believed the verdict was a racist one because the jury was primarily black and believed the jury participated in jury nullification. Pertaining to race based jury nullification, it is believed that black jurors ignore the facts and acquit a defendant whom they believe to be guilty to prevent the unfair and discriminatory imprisonment of more Blacks by a racist criminal justice system (Aylward, 1999:72). However, the jury claimed they acquitted O.J. Simpson based on the evidence presented about a racist policeman and the possibility of evidence tampering, therefore the jury believed the prosecution did not prove innocence beyond a reasonable doubt.
Cochran placed Blacks at the core of his defence, he believed the jury, consisting mostly of Blacks, would easily accept and understand evidence of police misconduct against Blacks. Due to the history of the unequal treatment of Blacks within the criminal justice system, Black jurors are more likely to entertain the thought that there are racist police officers and that police officers sometimes do lie. The defence implemented a Critical Race Litigation strategy and forced the court to consider the race question in hope to change the condition of "colour-blind" justice in America (Aylward, 1999:74). The Race Litigation strategy requires a contextualized approach to a court case that puts the experiences of blacks at the center of analysis.
Since the beginning of slavery Blacks have continuously sought equal rights and equal protection under the law in America. Despite their attempts to obtain equality, race still remains a serious problem in American society as is illustrated in recent court cases. Issues of race and racism can no longer be ignored, the new Critical Race Litigation strategy has emerged in order to face the ongoing problem of racism within the criminal justice system.
1999 Canadian Critical Race Theory. Halifax: Fernwood.
Hunt, Darnell M.
1999 O.J. Simpson Facts and Fictions. Cambridge, UK; New York: Cambridge University Press.
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